Discipline and Termination: Employment Law Blocking and Tackling

Discipline and termination issues continue to be some of the most difficult problems employers wrestle with in the employment relationship. At the same time, handling discipline or termination properly is one of the most important things employers can do. Conversely, the failure to do this correctly can expose the company to substantial liability.

Employers today face myriad laws and regulations governing the employment relationship. Many of these laws and regulations affect the way employers can discipline or terminate employees. As a result, doing it incorrectly can have dramatic legal consequences. It is also important to remember that discipline and termination are devastating consequences from the employee's perspective, which makes it more likely that an employee may take legal action in response to a perceived unfairness in the process. By following a few simple guidelines, employers will find it's really not that hard to discipline or terminate safely.

There are two basic causes for discipline or termination. Each has a separate process to follow. Rules-based or policy-based discipline stems from poor choices or poor conduct in the workplace that violate written or common sense rules of behavior. Performance-based causes come from a failure to meet legitimate productivity or quality expectations. For rules-based discipline follow the RIP approach; for performance issues, follow the GOOF method.

RIP approach

The RIP approach asks three essential questions: 1) Is there a Rule or policy clearly communicated to employees? 2) Was there an Infraction of the rule or policy? 3) What Punishment is fair given all of the facts and circumstances?

Unless the rule or policy is clearly communicated or widely understood, discipline of any kind will seem unfair to the employee. That is why many employers include basic rules of behavior and policies setting forth the workplace expectations in the employee handbooks they publish and communicate to employees. Likewise, if the infraction is not properly investigated, the employee may believe he or she is being singled out for unfair treatment. A proper investigation will always include listening to the employee's version of events. Finally, if the punishment meted out is not consistent with the treatment of similar prior infractions, or if the punishment seems excessive or harsh in light of the violation and circumstances, the employee may feel it is not fair.

GOOF method

The GOOF method asks four questions: 1) Were the Goals or expectations known to the employee? 2) Is there Objective evidence that goals were not met? 3) Was the employee given an Opportunity to improve? 4) Did the employee Fail to meet expectations despite the opportunity to improve?

Obviously, it will be perceived to be unfair to discipline an employee for not meeting expectations when the employee had no knowledge of the goals or expectations to be met. Similarly, unless there is some objective proof that the employee did not meet the expectation, any discipline will seem unfair. In most cases, it will be appropriate to give the employee an opportunity and time to improve, and in some cases training or mentoring may be appropriate to help the employee achieve the expectation or goal. Finally, unless the employee clearly failed when given an opportunity to improve, discipline may appear to be premature. Often, these circumstances warrant an extended "performance improvement plan."

Employers should note the guiding principle in all discipline and termination decision making is fairness. In this context, fairness implies that you conducted an impartial investigation of the facts, that you listened to the employee's story, and that you reached a decision that is consistent with past practice and treatment of other employees in like circumstances.

It is also vital that employers document the circumstances and facts leading up to and surrounding decisions to discipline and terminate. As an old friend once said to me, "If it's not written down, it never happened." This applies especially in any employment-related determination.

Following these simple steps will help ensure you do not get sued by an employee that you discipline or fire. If you are uncertain about your rules and policies, seek counsel from an employment attorney who can help you put the right language in place. Similarly, it is almost always a good idea to check with employment counsel if you have any doubts about discipline or termination in particular cases.